Fractionated heirship ? the federal policy intended to complete the dispossession of Indians from their lands, has worked all too well. Over 100 years after the nefarious 1887 Dawes or Allotment Act, scores of thousands of Indian descendant land owners find themselves holding uselessly small tracts of land.
Under the policy, Indian allotments are to be divided equally by all descendants. Often disallowing wills or any reasonable family dictate, the forced “equal” inheritance ad infinitum divided and subdivided Indian homesteads so that some 160-acre parcels have more than one hundred owners. Consensus on land use is nearly impossible in these circumstances and the land is often taken over by the BIA for leasing to mostly non-Indian ranchers. It was a great strategy for separating Indians from useful relations with their tribal assets.
This travesty of justice has gone on for generations. It was largely the issue that led to the occupation of the village of Wounded Knee in 1973 and has always been a prominent heartbreak for traditional Indians, particularly in the large Rocky Mountain and Great Plains reservations. On Pine Ridge, South Dakota, less than half of the original three million reservation acres remain in Indian hands. Allotments, which were originally aimed at breaking up the communal land base of the tiospaye, or extended family, have alienated many from their lands. Much of it was bought or is leased to white ranchers, while individual Indian allottees, with no say in how their land will be used, might receive as little as $1.19 a year in lease money for their share of an original allotment. This typical example shows that the annual cost for the government to process and mail such payments is greater than the worth of the individual asset itself.
A new Senate bill (S. 1340), introduced by Senator Ben Nighthorse Campbell, R-Colo., appears a good attempt at working to correct the many wrongs inflicted by this policy. Most importantly, Senator Campbell is challenging and inviting Indian leadership to help solve this century-old dilemma by building upon the Consolidation Reform Act. His legislation offers tribal leadership assistance at gaining more control over probate laws governing inheritance. Many tribal leaders have called for priority of tribal laws in these cases over state or federal laws. But Campbell wants them in on the discussion, and in the structuring of solutions. He wants Indian leaders working with him to “roll up our sleeves and take a good hard look at the laws that provide the framework for the use and probate of Indian trust lands.”
In particular, some 20 states with Indian allotments still enforce probate laws over Indian families. It makes for a very confusing structure. Probate in Indian country often takes more than a year. It is an imposition that leads to dispossession of land from extended Indian families. Many agree that the small holdings, sometimes of a few square feet, are useless, particularly in regions where the primary use for land is grazing or for growing corn and wheat, for which large tracts are required. Indian ranches are particularly susceptible to disintegration from fractionated heirship. BIA Director Neal McCaleb complains that fractionated interests continue to proliferate in Indian country. As fast as some land is consolidated, other tracts are subdivided to uselessness by complicated inheritance systems. The individual interests thus fractionated stand now at 171,000 in the Midwest alone.
Campbell’s bill would help establish a uniform interstate code that could be a model for other tribes and from which they could develop codes of their own. The writing of legally sound wills is one important value. Inter-tribal inheritance and inheritance by non-members is another important area to clarify. Midwestern tribes have addressed the fractionation problem by issuing codes that will turn small portions of inherited lands into trust land for the tribe. As Tex Hall, chairman of the Three Affiliated Tribes in North Dakota and President of the National Congress of American Indians, reminded the government, “President [Theodore] Roosevelt [called] the General Allotment Act … a great pulverizing engine designed to crush the Indian mass.”
The Allotment Act and subsequent fractionation policies attempted to destroy the Indian commitment to maintain a productive, communal relationship to tribal lands. It did not quite work, although it did a lot of damage to individual and, hence, tribal holdings. Certainly, it is time to fix it. We urge all concerned tribal leaders to review and help inform the Campbell legislation that is being constructed. The senator’s bill is a good challenge that merits proper response.
